The question presented in this case was decided by the late General Term of the Supreme Court in the case of New York,. Lake Erie & W. Ry. Co. v. Carhart (39 Hun, 363). The right of the plaintiff to recover the amount claimed by him was conceded by the defendant. The defendant interposed a counterclaim. for which he asked an affirmative judgment. The verdict of the jury awarded him a substantial recovery upon his counterclaim, the amount of which was deducted from the amount conceded to be due to the plaintiff, The only issue involved in the action being the demand of the defendant to recover upon ' his cause of action against the plaintiff, and he having succeeded in recovering a sum of money upon his counterclaim, it cannot be said that the plaintiff was the successful party. As a matter of fact, upon the only disputed question in the case the defendant succeeded, and, consequently, the plaintiff was not -entitled to an allowance upon the balance of his conceded claim for which he had judgment.
The order appealed from should be reversed, with ten dollars costs and disbursements.
Present — Van Brunt, P. J., Barrett, Rumséy, O’Brien and Ingraham, JJ.
Order reversed, with ten dollars costs and disbursements.